July 11, 2011

Supreme Court bobblehead dolls are a Green Bag (law journal) tradition, and each one depicts a Justice along with various items that reflect things from decision he or she has authored:

For example, Thomas is shown standing on two pizza boxes, a reference to Thomas's statement in the 2005 case National Cable & Telecomm. Association v. Brand X Internet Services, "One can pick up a pizza rather than having it delivered, and one can own a dog without buying a leash. By contrast, the [Federal Communications] Commission reasonably concluded, a consumer cannot purchase Internet service without also purchasing a connection to the Internet."

Likewise, Thomas is holding an American flag which has on the reverse side the text of the 1954 federal law that added the words "under God" to the Pledge of Allegiance. The law was at issue in the 2004 case Elk Grove Unified School District v. Newdow, in which Thomas wrote a concurrence asserting the unusual view that the First Amendment's Establishment Clause does not protect an individual right or apply against state laws.

asserting the unusual view that the First Amendment's Establishment Clause does not protect an individual right or apply against state laws.

It's odd that that should be unusual, since the text says that Congress shall not establish a State religion.

That can't really be an "individual right", since it's a prohibition on Congress doing something. (I suppose you could decide that's an individual right to not have an Established Church, but that seems both strained and unnecessary...)

And it plainly didn't affect the States until at least the 14th Amendment - there were established State-level churches, which were not removed by Constitutional challenge.

Nobody (to my knowledge) in 1789 thought it would have the effect of removing State-level Establishments, and indeed that wasn't the goal - but to prevent an oppressive Federal Establishment.

The only thing that should be potentially unusual about Thomas' concurrence there is the question of whether the 14th Amendment incorporated the prohibition on Established Churches against the States (which was more or less moot, since they were already all gone and there's been no hint of wanting to restore any).